Philip Clarke v South Dublin County Council

JurisdictionIreland
JudgeMr. Justice Hanna
Judgment Date07 March 2008
Neutral Citation[2008] IEHC 84
CourtHigh Court
Docket Number[2006 No. 39 JR]
Date07 March 2008

[2008] IEHC 84

THE HIGH COURT

[No. 39 J.R./2006]
Clarke v South Dublin Co Council
[2008] IEHC 84
JUDICIAL REVIEW

BETWEEN

PHILIP CLARKE
APPLICANT

AND

SOUTH DUBLIN COUNTY COUNCIL
RESPONDENT

LOCAL GOVERNMENT ACT 1994 S40(1)

SOUTH DUBLIN CO COUNCIL (PROHIBITION OF CONSUMPTION OF INTOXICATING LIQUOR IN PUBLIC PLACES) BYE-LAWS 2001 S2(1)

LOCAL GOVERNMENT ACT 1994 S37(1)

SOUTH DUBLIN CO COUNCIL (PROHIBITION OF CONSUMPTION OF INTOXICATING LIQUOR IN PUBLIC PLACES) BYE-LAWS 2001 S2

SOUTH DUBLIN CO COUNCIL (PROHIBITION OF CONSUMPTION OF INTOXICATING LIQUOR IN PUBLIC PLACES) BYE-LAWS 2001 S6

SOUTH DUBLIN CO COUNCIL (PROHIBITION OF CONSUMPTION OF INTOXICATING LIQUOR IN PUBLIC PLACES) BYE-LAWS 2001 S7

LOCAL GOVERNMENT ACT 1994 S41

CONSTITUTION ART 15.2

PIGS MARKETING BOARD v DONNELLY LTD 1939 IR 413

LAURENTIU v DPP 1999 4 IR 26

CONSTITUTION ART 28A

LOCAL GOVERNMENT ACT 1994 S37(2)

LOCAL GOVERNMENT ACT 1994 S37(8)

LOCAL GOVERNMENT ACT 1994 S37

CITYVIEW PRESS LTD v COMHAIRLE OILIUNA 1980 IR 381

BUTLER KEANE ON LOCAL GOVERNMENT 2ED 2003 56

LOCAL GOVERNMENT ACT 1994 PART VII

INTOXICATING LIQUOR ACT 1924 S13(3)

INTOXICATING LIQUOR ACT 1924 S13(6)

INTOXICATING LIQUOR ACT 2003 S17(5)

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S4

LOCAL GOVERNMENT ACTS 1925 TO 1994

LOCAL GOVERNMENT ACT 1994 S37(4)

LIMERICK CORPORATION v SHERIDAN 1956 90 ILTR 59

CONSTITUTIONAL LAW

Legislation

Bye-laws - Whether permissible delegation of legislative function - Whether promulgation of bye-laws creating offence of consumption of intoxicating liquor in public places ultra vires - Whether consumption of intoxicating liquor in public places already governed by legislation - Whether bye-laws come within principles and policies of Act - Cityview Press v An Chomhairle Oiliúna [1980] 1 IR 381 followed - South Dublin County Council (Prohibition of Consumption of Intoxicating Liquor in Public Places) Bye-Laws 2001 - Local Government Act 1994 (No 8), s. 37 - Constitution of Ireland 1937, Article 15.2.1 and Article 28A - Relief refused (2006/39JR - Hanna J - 7/3/2008) [2008] IEHC 84

Clarke v South Dublin City Council

Facts: The applicant was prosecuted for the offence of consuming liquor in a public place, which was denied. The applicant alleged that the South County Dublin (Prohibition of Consumption of Intoxicating Liquor in Public Places) Bye Laws, 2001, made pursuant to the Local Government Act 1994 to prosecute the applicant were ultra vires and in breach of Article 15.2.1 of the Constitution.

Held by Hanna J. that the Bye Laws did not exceed the legal or constitutional framework in which the respondent operated. They were designed for a specific purpose. The requisite powers to so act had been delegated to the local authority and the broad powers given to the local authority encompassed a wide range of governance.

Reporter: E.F.

1

Mr. Justice Hanna on the 7th day of March, 2008

2

This case arises from an intended prosecution of the applicant by the respondent for an alleged offence under bye-laws prohibiting the consumption of intoxicating liquor in a public place. The offence allegedly occurred on 1 st May, 2005. The prosecution was brought by way of summons and the offence is said to be contrary to the Local Government Act 1994, s. 40(1) and the South Dublin County Council (Prohibition of Consumption of Intoxicating Liquor in Public Places) Bye-Laws 2001, more specifically Bye-Law 2(1), made by virtue of s. 37(1) of the aforesaid Act. The applicant faces a fine not exceeding €1, 269.74 if convicted.

3

The prosecution arises from a complaint by one Garda Michael Groarke of Tallaght Garda Station, who states that he witnessed the applicant consuming alcohol in Butler McGee Park which is within the administrative area of South Dublin County Council. The applicant denies that he was consuming alcohol at the time and in the place alleged although one of his two male companions was so engaged. It should be noted that this is the only charge facing the applicant. Other than the act of allegedly consuming alcohol in a public place, no allegation of any public order offence is advanced against the applicant.

4

The applicant seeks but one principle relief. He wishes to obtain an injunction restraining the prosecution. He was given leave to proceed by way of judicial review by order of Peart J. on 16 th January, 2006. The ground for seeking this relief is stated as follows:-

5

i "(i) The promulgation of the said South Dublin County Council (Prohibition of Consumption of Intoxicating Liquor in Public Places) Bye-Laws, 2001 is ultra vires the respondent as it is in breach of the Article 15.2.1° which vests in the Oireachtas the exclusive right to make legislation. The respondent cannot effectively usurp the role of the Oireachtas in prohibiting the consumption of alcohol in a public place especially when the Oireachtas has pointedly declined to do so in the Intoxicating Liquor Acts. Nor can the Respondent purport to avail of its bye-law making power (whether under the Local Government Act 1994 or Local Government Act 2001) to turn itself into a local version of the Oireachtas and through the guise of bye-laws to pass what amounts to the equivalent of a public general Act for the South Dublin County Council functional area.

6

(ii) The South Dublin County Council (Prohibition of Consumption of Intoxicating Liquor in Public Places) Bye-Laws, 2001 are not within the principles and policies of the Local Government Act, 1994"

7

A somewhat unusual feature of this application is that it was grounded on a rather short affidavit sworn by the applicant's solicitor which, she avers, is sworn on her own behalf. Mr. Gallagher S.C., for the respondent, pointed out that no affidavit in support of the application had been filed by the applicant. As such, he complained, there was no evidence before the court that the applicant even knew about the case. However, an affidavit was sworn by the applicant in reply to the respondent's affidavit challenging the respondent's version of what occurred on the occasion in question and this certainly represents full engagement by the applicant in the proceedings. It would, of course, be more appropriate if a preliminary affidavit albeit only in short form, had been sworn by the applicant.

The Bye-Laws
8

The bye-laws were made by the County Council in 2001 with effect from 9 th August, 2001 for the following express reason:-

"Whereas the Council is of the opinion that behaviour consisting of the consumption of intoxicating liquor in public places is contrary to the proper use, operation, protection regulation or management of such public places under it's control or management in that such behaviour seriously detracts from the proper purpose, amenity and enjoyment of public places"

9

The bye-laws describe s. 37(1) of the local Government Act 1994 as giving authority to the respondent to promulgate them:-

"Whereas South Dublin County Council, (hereinafter called the Council) has power by virtue of s. 37(1) of the Local Government Act, 1994 to make Bye-Laws for or in relation to the use, operation, protection, regulation or management of any land, services, or any other thing whatsoever provided by or under the control of the Council or in relation to any matter connected therewith."

10

The bye-laws define a public place as follows:-

"'Public place' includes roads, streets, lanes, cul-de-sacs, squares, passageways, alleys, bridges, tunnels, or footpaths, open spaces, public parks, cemeteries, green spaces and amenity areas together with such areas or space as it contiguous with any of the foregoing places AND which is under the control or management of the Council."

11

A definition of 'intoxicating liquor' is also given:-

"Intoxicating liquor means spirits, wine, beer, porter, stout, cider, perry and any fermented, distilled or spirituous liquor which cannot according to any law for the time being in force, be legally sold without a licence from the Revenue Commissioners or any drink or other liquid containing alcohol."

12

Paragraph 2 of the bye-laws provide for the offences of consuming (or attempting to consume) intoxicating liquor in a public place and possessing intoxicating liquor with intent to consume or supply:-

"2. Subject to Paragraph 8 hereof a person shall not -"

13

(1) consume or attempt to consume intoxicating liquor in a public place within the functional area of the Council or

14

(2) possess intoxicating liquor in a pubic place within the functional area of the Council with the intention to consume it in a public place or to supply it to any person for consumption in a public place within the functional area"

15

The contravention of the bye-laws is described as an offence punishable on a summary conviction to a fine of up to €1, 269.74 (£1, 000)

16

The bye-laws confer on members of An Garda Síochána powers of seizure and destruction of the intoxicating liquor. Powers are given to gardaí and authorised persons to direct suspects to leave the vicinity where there are reasonable grounds to believe they have contravened the bye-laws and provide for offences of failure to comply and preventing or attempting to prevent such a direction.

17

The bye-laws purport to empower gardaí to demand the name and address of a person suspected of contravening the bye-laws. Refusal to comply with such a direction is an offence. Paragraph 6 of the bye-laws purports to give gardaí power to arrest, without a warrant, a person suspected to be (or have been) in breach of the bye-laws. Paragraph 7 provides that a person suspected of having contravened the bye-laws can be sent a fixed charge notice (pursuant to s. 41 of the Local Government Act 1994 and regulations made thereunder) in lieu of prosecution.

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